Fair Use, Fairness and the Public Interest
By Neil Turkewitz Senior Policy Counsel, Intellectual Property & Digital Economy, International Center for Law & Economics
In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the “public interest” on the one hand, and the interest of private copyright owners on the other. In this formulation, the “public” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.
Many of the organizations celebrating fair use would have you believe that copyright protection and the public interest are diametrically opposed. This is merely a rhetorical device, and is a complete fallacy. Groups like EFF, Public Knowledge and re:Create employ emotive rhetoric in an attempt to demonize copyright, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process. We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something. Unfortunately, for Fairuseweek.org, and its allies, fair use tends to be little more than a useful slogan that has little to do with fairness, and which frequently masks commercial interests that want to distribute or otherwise make creative works available without licensing.
Let me also highlight that fair use covers two relatively distinct areas: (1) truly transformative uses given the understanding that the production of cultural and literary artifacts reflects the past, and borrows from earlier expression; and (2) certain consumptive uses that are deemed to have marginal economic impact on the copyright owner. One could look at consumptive fair uses as being permitted where the costs of enforcing the copyright are not justified in relation to the limited prejudice to the value of the work. Many of those that celebrate fair use draw upon the sympathetic environment for considering expressive/transformative uses (i.e. the use of protected materials in reporting, commentary, satire, parody or the production of new creative works), but apply them to consumptive uses that lack social value. This results in championing economic inefficiency while using the language of freedom.
When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories. So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value. Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access. I propose to the folks at fairuseweek.org a renaming ceremony. How about “sustaining creativity week?” If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate.